Ihor Popovych v. Eric Holder, Jr.

Filing

OPINION filed : the petition for review is DENIED, decision not for publication. Ronald Lee Gilman, John M. Rogers (authoring) and Jane Branstetter Stranch, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0325n.06
FILED

No. 10-3405

Mar 23, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

IHOR POPOVYCH,

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Petitioner;
v.
ERIC H. HOLDER, JR, Attorney General,
Respondent.

LEONARD GREEN, Clerk

ON PETITION FOR REVIEW
OF AN ORDER OF THE
BOARD OF IMMIGRATION
APPEALS

BEFORE: GILMAN, ROGERS, and STRANCH, Circuit Judges.
ROGERS, Circuit Judge. While living in Ukraine, Ihor Popovych was a police officer who
investigated organized crime and government corruption. He petitions for review of the Board of
Immigration Appeals order affirming the immigration judge’s denial of his application for asylum,
withholding of removal, and relief under the Convention Against Torture. Substantial evidence
however supports the Board’s decision that Popovych lacks a well-founded fear of future persecution
based on a ground protected by the Immigration and Nationality Act. Popovych has also not shown
that any alleged translation errors prejudiced his case.
I.
Ihor Popovych is a native and citizen of Ukraine. While living in Ukraine, he was employed
as a police officer, and from 1999 through 2003, he worked in a division that investigated organized

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crime. From 2003 to 2004, he was the chief of the ministry of internal affairs for economic and
corruption crimes.
Popovych first entered the United States on August 22, 2004 on a visitor’s visa. One year
later, he applied for asylum, withholding of removal, and voluntary departure under the Immigration
and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3), and 1229c(b), and protection under the
Convention Against Torture (CAT), 8 C.F.R. § 1208.16(c). He was issued a notice to appear, and
between November 2005 and March 2008 the immigration judge (IJ) assigned to his case held a
series of hearings. The IJ also afforded Popovych the opportunity to submit a supplemental asylum
application, to make changes and corrections to it, and to submit various exhibits in support of his
application.
At the hearings, Popovych testified that his work in the organized crime unit often involved
investigating accusations of government corruption. He said that he would often be pressured by his
supervisors to start and stop certain investigations, presumably for political reasons. If he refused,
his superiors would find ways to prevent him from working on the cases, and he sometimes received
demerits. Popovych also testified, that in a number of cases he investigated, key figures would be
killed in suspicious car crashes. He said that after he arrived in the United States, he was told by
friends that, in one of the cases he had been investigating, suspects had begun to accuse him of
illegal and unethical activities. He also heard from his wife that two unknown men had asked for
Popovych at his house, saying that he was “creating big problems” and that they would “finish this
matter.” Popovych testified that he was convinced that if he returned to Ukraine, he could be jailed
because of his investigatory work, whether by disapproving superiors in the police department or
corrupt government officials still in power for whom he had caused trouble. He testified that he
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feared for his life. Volodymyr Rakovskyy, who also once worked in the Ukranian police department,
testified and corroborated that Popovych had been pressured by his superiors to direct investigations
in specific ways. Rakovskyy also testified that police officers connected to Popovych’s department
who did not follow such directions would sometimes be either killed in staged car accidents or
beaten.
There was a Ukranian-language translator present at the hearings. At one point early in the
proceedings conducted on September 10, 2007, as Popovych was outlining his schooling and career,
Popovych’s lawyer, Bradley Maze, objected to the proceedings. He did so on the ground that “a lot
is being lost” in the translation, based on his speaking with a colleague who understood Ukranian
and was present in the courtroom, and Maze asked that the interpreter be instructed to stop the
respondent so that the interpreter could translate more often. The IJ asked Maze to specify what was
being lost, to which Maze replied, “[i]t appears there may be some narration because the responses
are very long” and that “some of the details perhaps are not being translated.” The IJ concluded that
“[i]f you can’t tell me what was missed, I don’t find your objection to be duly noted . . . particularly
when you say [a colleague] speaks the Ukranian language.” The IJ told the interpreter to “instruct
the respondent to speak in shorter sentences” and to “tell him to stop so you can make sure you’re
interpreting the exact sentences . . . so the record can be protected.” The questioning continued, but
shortly stopped again when Maze requested the IJ to “[i]nstruct him to go a little shorter.” The IJ
said, “[i]t’s not the translator,” to which Maze responded “I know.” The IJ said, “You talk to your
client. It’s not the interpreter. You need to prep your client.” The IJ then gave Maze permission to
instruct the client either to give short responses or to break up his responses to allow the interpreter

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time to interpret. At no other point in the proceedings was the accuracy of the translation questioned.
Popovych gave almost all of his testimony on September 10, 2007.
In an oral opinion, the IJ denied all of Popovych’s requested relief except voluntary
departure. The IJ found that generally Popovych’s testimony was credible and consistent with the
information in his written application, but she found that “the underlying bases or merits of the
respondent’s claims” presented a problem. The IJ held that Popovych had failed to show any
instance of past persecution, and that his attorneys had conceded the point. The IJ found no evidence
of physical mistreatment or any significant deprivation of liberty, only claims of “veiled pressure or
threats” that did not rise to the level of persecution contemplated in the INA. The IJ also held that
Popovych failed to establish a well-founded fear of future persecution. She highlighted that
Popovych’s testimony about being reprimanded at work and therefore at risk was weakened by the
awards and promotion he had received. She also compared the situation to that confronted by this
court in Marku v. Ashcroft, 380 F.3d 982 (6th Cir. 2004), and concluded that there was no evidence
that Popovych’s treatment resulted from having a political opinion imputed to him or being a
member of a social group, and so there was no nexus to a protected ground under the INA. The IJ
found no evidence of past torture and found that Popovych’s statements that he “could” be jailed,
harmed, or tortured if returned to Ukraine did not satisfy his burden of proof under the CAT.
Popovych appealed the IJ’s decision to the Board of Immigration Appeals (BIA). He argued
that the IJ had erred on a number of legal and factual points, and that he was denied his due process
rights because of an incompetent interpreter. The BIA panel dismissed Popovych’s appeal. It
determined that there was no clear error in the IJ’s factual findings. The BIA agreed with the IJ that
Popovych had not carried his burden of establishing a likelihood of future persecution under the
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INA, primarily because there was no evidence that his treatment resulted from political opinions.
The BIA also agreed with the IJ that Popovych had failed to show that it was more likely than not
that he would be tortured if returned to Ukraine, because there was not sufficient evidence to support
the assertion. Lastly, the BIA held that because Popovych failed to offer specific ways that his words
could be translated differently, and because the instances of interpreter deficiencies he cited “d[id]
not involve central aspects of his persecution claim,” there was no proof that a better translation
would have affected the outcome, and so he was not denied due process. Popovych timely petitioned
this court for review.
II.
A. Fear of Persecution1
Substantial evidence does not compel a finding that Popovych will face persecution in
Ukraine motivated by his membership in a particular social group or a political opinion imputed to
him. He has not established a sufficient nexus to a protected ground. Such a nexus is required for
a petitioner to be considered a refugee for purposes of asylum. See 8 U.S.C. § 1101(a)(42); Zoarab
v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008). His lawyers conceded that he was not a victim of
past persecution, and he does not appeal that issue. The future persecution that he claims he will
suffer must therefore be different from what he encountered before leaving Ukraine. The main
evidence he provides on this point — the visit of two unknown men to his house with vague threats,
and the accusation of misconduct lodged against Popovych — does not establish a sufficient
likelihood. The fear that criminals may seek retribution against a police officer who has performed
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The BIA erroneously stated that the REAL ID Act did not apply to Popovych’s case because
it misstated the date on which Popovych’s application was filed. Because we would deny review
under law existing both before and after the REAL ID Act, this error is harmless.
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his duty does not constitute persecution based on a political opinion. See Tamara-Gomez v.
Gonzales, 447 F.3d 343, 349-50 (5th Cir. 2006). Suggesting that there will be future persecution by
the government is too speculative.
It was reasonable for the BIA to conclude that Popovych’s police work seeking out corruption
was not an expression of political opinion that formed the basis of persecution. There is not enough
evidence to establish that Popovych’s political opinions led to specific actions or that any such
actions were perceived as political by his supervisors. Popovych makes much of the factual
differences between his case and Marku, 380 F.3d 982, which the BIA and IJ relied on in reaching
their decisions, but the case’s reasoning remains applicable. Marku was employed by a governmentowned company in Albania and was threatened by her supervisor when she refused to doctor the
books to disguise losses. The IJ in her case found that there was insufficient evidence to establish
that her persecutor had “imputed any political claim whatsoever to [her].” Id. at 985. Rather, the
persecutor had acted “as a result of his fear that [Marku] would expose his criminal and corrupt
activities.” Id. We determined that though Marku’s testimony suggested that she opposed
government corruption “as an ideological matter,” she had presented “no evidence that any of her
actions were ideologically motivated or that Sota, her alleged persecutor, perceived them as such.”
Id. at 986-87. To support this statement, we pointed to the fact that Marku never publicly opposed
corruption or attempted to expose her supervisor’s actions. Id. at 987. Furthermore, the evidence
did not compel the conclusion that her supervisor was acting in response to a purported political
opinion, rather than “out of fear of losing his job.” Id. at 988. Marku had not adequately
demonstrated persecution on account of a political opinion.

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The facts of Popovych’s case lead to a similar conclusion. Popovych’s profession was to
investigate corruption, and he never took any steps beyond that charge. He never tried to complain
to those higher up that his supervisors were pressuring him to decide cases on political grounds. He
never attempted to expose corruption to the public or another government body. He never tried to
broaden his investigative scope by taking on more cases than were assigned to him or working on
cases that had been taken away from him. Nothing about his application or testimony suggests that
his actions rose to the level of a whistle-blower or were interpreted as such by his supervisors. The
pressure he testifies about from his supervisors appears to be based on his not doing what they were
telling him to and thus getting in the way of their taking bribes, not his general opposition to the
government. Popovych’s situation more closely resembles a personal dispute with a particular
government official, which even if rising to the level of persecution does not satisfy the INA’s nexus
requirement. See Zoarab, 524 F.3d at 781.
This is not a situation like Bu v. Gonzales, 490 F.3d 424, 426-27 (6th Cir. 2007), where we
found that a union chairman who had staged a strike “protesting the factory officials’ corrupt acts”
and was arrested for “organiz[ing] illegal meeting[s and] gather[ing] workers to disturb the public
security” and then beaten had shown that a political opinion was imputed to him. Popovych has
made no argument that he was targeted “as a political prisoner who was guilty of opposition to the
government,” as in Bu. Id. at 429. Nor does the evidence he has submitted compel the conclusion
that he will be arrested in the future.
Marku expressly addresses Popovych’s argument that he will be persecuted because of his
membership in a particular social group, namely “those working for the government who refuse to
comply with its corruption.” Marku pointed to a similar group, but presented no evidence
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compelling the conclusion that membership in such a group made her “particularly likely to be
persecuted in Albania.” Marku, 380 F.3d at 987 n.8. Popovych’s evidence fails on similar grounds.
Because Popovych has failed to show that the record compels reversal of the BIA’s asylum
denial, he has similarly failed to show that the record compels reversal of his denial of relief under
withholding of removal, since that ground has an even higher burden of proof than asylum. See
Koliada v. I.N.S., 259 F.3d 482, 488-89 (6th Cir. 2001).
Popovych’s argument that a remand is necessary because the BIA did not apply the proper
standard when weighing the evidence used to establish a well-founded fear of persecution is without
merit. The BIA cited the proper standard of review in its opinion explicitly, namely de novo review
of legal standards, and stated that it agreed with the IJ’s legal conclusions, including burden of proof.
The BIA opinion goes on to discuss the record and evidence from it. The BIA did exercise its
authority, recognized in Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209, 212 (BIA 2010), to “give
different weight to the evidence from that given by the Immigration Judge.” Even if it did not, this
weighing appears to be an option the BIA can choose to decline, and so no remand is necessary to
determine whether it did so in this case.

B. Convention Against Torture
A reasonable adjudicator would not be compelled to find that Popovych had established that
he would more likely than not be tortured if removed to Ukraine. See 8 U.S.C. § 1252(b)(4)(B); Ali
v. Reno, 237 F.3d 591, 596 (6th Cir. 2001) (stating standard). There is scant mention of torture on
the record. Although some of the reports and articles Popovych submitted with his application
mention torture of those detained by Ukranian police, these do not indicate a clear probability that
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Popovych would suffer the same fate. As stated before, Popovych has not even proven that he is
likely to be arrested if returned to Ukraine. Even if he were detained, his application does not
suggest that torture is more likely than not to occur in prison. The reports he provided with his
application chronicle complaints and confirmed cases of torture, but do not establish that the average
individual detained in Ukraine will be tortured. Such sparse and generalized information fails to
satisfy the Convention’s burden of proof. See 8 C.F.R. § 208.16(c).
Popovych’s argument that the threats made against him rose to the mark of emotional torture
under 8 C.F.R. § 208.18(a)(4) is also unconvincing. CAT relief is prospective; Popovych must show
the likelihood of being tortured if returned to Ukraine. 8 C.F.R. § 1208.16(c)(2). This torture must
be distinct from the experience he had while in Ukraine, since Popovych’s lawyer has already
conceded that he did not suffer from persecution when in Ukraine, and torture is more extreme than
persecution. Popovych’s largely undeveloped argument on this point seems to be that those past
threats do constitute torture. Yet never during his testimony did he claim that emotional anguish
resulted from such threats. He did not claim these threats were so prolonged or sustained so as to
cause him “mental pain or suffering.” 8 C.F.R. § 208.18(a)(4). The degree of emotional anguish
contemplated by the CAT requires more than isolated instances of threats, even serious ones. A
reasonable IJ could find that the record does not suggest that any of these threats rose to the level of
“prolonged mental harm caused by or resulting from . . . threat of imminent death.” 8 C.F.R. §
208.18(a)(4).

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C. Translation Problems
Popovych has failed to show that any errors in translation took place. Although he points out
several instances in the record where the answers given do not respond to the questions asked, he
offers no proof that the translation was the issue rather than his own answers. In the past, we have
declined to find translation errors where the petitioner “fails to explain ‘how these passages should
have been interpreted.’” Makhalou v. Gonzales, 173 F. App’x 378, 380 (6th Cir. 2006) (quoting
Filipi v. Gonzales, 127 F. App’x 848, 851 (6th Cir. 2005)). This court should not be asked to assume
that mistranslations have occurred without some proof in the record beyond discrepancies and
ambiguities. In Koods v. Gonzales, 129 F. App’x 263, 265 (6th Cir. 2005), we rejected a similar
request.
Popovych has also failed to prove that the interpreter was incompetent. He was certified to
translate in Popovych’s native language, and there is no evidence to suggest that there were different
dialects at play. In Fall v. Gonzales, 218 F. App’x 385, 389 (6th Cir. 2007), we found no violation
of due process in part because “[a]t no point does the record indicate that the interpreter was
incapable of interpreting the language petitioner spoke or that he spoke a different dialect.”
Popovych’s case can be distinguished from Amadou v. I.N.S., where the translator spoke a different
dialect and commented several times during the hearing that he did not understand what Amadou
was saying. Amadou v. I.N.S., 226 F.3d 724, 725 (6th Cir. 2000).
The IJ acted reasonably when confronted with the translation difficulties to ensure
Popovych’s due process concerns were addressed. When Popovych’s lawyer expressed concerns

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about the quality of the translation, the IJ asked him specifically what was being lost.2 When she
determined that nothing of significant import had been lost, she had the interpreter instruct Popovych
“to speak in shorter sentences and to watch you and you tell him to stop so you can make sure you’re
interpreting the exact sentences.” The record suggests that the interpreter tried to do so, but that
Popovych did not listen to the instruction, requiring the IJ to stop him again. The IJ concluded that
the translator was not at fault for the length of Popovych’s answers and so saw no need to stop the
proceeding or find a replacement. These actions are similar to those taken by the IJ in Malaj v.
Gonzales, 199 F. App’x 453, 460 (6th Cir. 2006), where the IJ had the interpreter repeat questions
that elicited unclear answers and warned the interpreter to translate word for word. In Iancu v. I.N.S,
69 F. App’x 661, 662 (6th Cir. 2003), counsel objected only once that “something was lost in
translation” but did not make further objections after that. The court determined that because
“counsel had ample opportunity to clarify any matters that he thought were unclear, during direct and
redirect examination,” there had been no denial of due process. Id. Although Popovych points to
several cases where the IJ treated the objection differently, including sending a recording of the
hearing to a translation-evaluation service, none of these cases suggests that such actions are required
to ensure due process. See Peci v. Holder, 379 F. App’x 499 (6th Cir. 2010); Ba v. Holder, 374 F.
App’x 594 (6th Cir. 2010). Immigration judges have broad discretion in conducting their hearings.
See Ahmed v. Gonzales, 398 F.3d 722, 725 (2005). The IJ took action to ensure that Popovych was

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At oral argument, counsel for Popovych stated that the Ukrainian speaker was actually
Latvian, which explained why he was unable to specify translation errors. This fact would not have
prevented Popovych from reviewing the transcript after the hearing and submitting a showing of
specific errors.
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afforded a full and fair hearing. Under the standard articulated in Castellano-Chacon v. I.N.S., 341
F.3d 533, 553 (6th Cir. 2003), no due process violation occurred.
Even had Popovych shown errors in translation, he has failed to show that he was prejudiced
by any alleged translation errors. Proof of prejudice is necessary to establish a due process violation
in an immigration hearing. See Warner v. Ashcroft, 381 F.3d 524, 539 (6th Cir. 2004). The IJ found
Popovych to be credible, and denied his application for an independent reason, namely, his failure
to demonstrate a well-founded fear of future persecution based on a protected ground. There is little
potential that a translation error affected her finding. This case is similar to Daneshvar v. Ashcroft,
355 F.3d 615, 622 (6th Cir. 2010), in which we stated that inadequate translation was irrelevant
because the BIA rejected an application for failure to demonstrate a well-founded fear of persecution.
Because the case did not hinge on an adverse-credibility determination, any inadequate translation
was not prejudicial. See also Kalaj v. Gonzales, 185 F. App’x 468, 475 (6th Cir. 2006); Cela v.
Gonzales, 205 F. App’x 376, 387 (6th Cir. 2006).
This case is again distinguishable from Amadou, 226 F.3d at 725-26, where the IJ denied
Amadou’s application on adverse-credibility grounds because of inconsistencies in Amadou’s
testimony and his limited knowledge on crucial points. We held that “the interpreter’s faulty
translation directly prejudiced Amadou because the judge and Board denied his application based
on the testimony at the hearing. . . . [T]he interpreter’s faulty translation likely played a significant
part in the judge’s credibility determination” and the Board’s decision to deny Amadou’s
applications, and therefore constituted a violation of due process rights. Id. at 727. In situations like
Amadou, the potential for translation to prejudice the applicant is great, because inconsistencies and
vagueness will work against the applicant. We recently stayed an appeal to provide a petitioner with
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the opportunity to present evidence to the BIA that her medical records were mistranslated, because
an inconsistency in the records “contributed substantially and directly to the Immigration Judge’s
adverse-credibility determination.” See Sea v. Holder, 444 F. App’x 843, 844 (6th Cir. 2011). In
Popovych’s case, with no adverse-credibility finding, he has failed to show such prejudice.
III.
We deny Popovych’s petition for review.

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